2019 (5) TMI 1731 - AT - Service Tax

CENVAT credit - services provided by the appellant to the Mutual Fund - exempt service or not - HELD THAT - Rule 2 (p) of Cenvat Credit Rules in sofar as it declares a taxable service is not an output service where service tax is payable under Reverse Charge Mechanism by the recipient of service is in direct conflict with the provisions of the Finance Act 1994. The established principle of law is that rules are framed to facilitate the implementation of the Act. The Rules cannot override the provisions of the Act. It is declared that the said sub-clause (2) of Rule 2(p) of Cenvat Credit Rules to be ultra vires of the provisions of the Finance Act 1994. Accordingly show cause notice is not maintainable. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Classification of services under Banking and Financial Services, Business Auxiliary Services, and Stock Broking Services; Tax liability under Reverse Charge Mechanism for services provided as an agent of the Mutual Fund; Conflict with Article 265 of the Constitution regarding double taxation; Interpretation of Rule 2(p) of Cenvat Credit Rules for determining output service and tax liability; Validity of demand raised by Revenue based on Rule 6(3) of Cenvat Credit Rules.

Analysis:
The appellant in this case provided taxable services under various heads, including Banking and Financial Services, Business Auxiliary Services, and Stock Broking Services. Additionally, they acted as an agent of a Mutual Fund, collecting deposits and subscriptions, and receiving a commission for these services. The Revenue demanded tax from the appellant under the Reverse Charge Mechanism, despite the Mutual Fund already discharging its tax liability. This raised concerns regarding potential double taxation and conflict with Article 265 of the Constitution, which prohibits collecting tax more than once on the same transaction.

The Revenue issued a show cause notice to the appellant based on the belief that the services provided to the Mutual Fund were exempt under Rule 2(p) of the Cenvat Credit Rules. The notice required the appellant to reverse an amount under Rule 6(3) of the Cenvat Credit Rules, leading to a confirmed demand and penalty. The appellant appealed to the Commissioner (Appeals), who upheld the demand but reduced the penalty to 50%. Dissatisfied, the appellant approached the Tribunal for further review.

During the hearing, it was observed that Rule 2(p) of the Cenvat Credit Rules, declaring a service as non-output where tax is payable by the recipient under the Reverse Charge Mechanism, was in conflict with the Finance Act, 1994. It was established that rules should facilitate the Act's implementation and not override its provisions. Consequently, the sub-clause of Rule 2(p) was deemed ultra vires of the Finance Act, and the show cause notice was declared not maintainable. As a result, the appeal was allowed, the impugned order was set aside, and the appellant was entitled to consequential benefits as per the law.

In conclusion, the Tribunal's judgment provided clarity on the classification of services, tax liability under the Reverse Charge Mechanism, and the validity of demands based on specific rules. It emphasized the importance of ensuring that rules align with the overarching legislation and highlighted the appellant's entitlement to relief in cases of legal inconsistencies.